Oregon voters may soon be asked to require unanimous verdicts

Sunday

Louisiana voters in November abolished a law allowing less-than-unanimous jury verdicts in felony cases — leaving Oregon as the only place in the United States that does not require unanimity.

State lawmakers, however, appear ready in the coming session to ask voters to bring Oregon in line with the other 49 states and the federal system. The soonest a ballot proposal could be considered in a statewide election is 2020.

"It seems to me this should go through without a lot of opposition," state Sen. Floyd Prozanski, D-Eugene, said of an anticipated legislative referral that, if approved, would amend the Oregon Constitution to require unanimous verdicts.

There has been discussion that Democratic House Majority Leader Jennifer Williamson of Portland would sponsor a bill that would seek to have legislators vote to change state law during the coming session, which convenes Jan. 22. While that could bring about changes sooner, Williamson's staff said this week that the only related legislation she plans to introduce is a bill that would ask voters to decide the issue.

Prozanski, who works as a municipal prosecutor, said he expects some discussion about a potential "statutory fix" but said it's not a plan he would support. "It has to be enacted by the people because it's in the Constitution," he said.

It is in the Constitution in the first place after a majority of Oregon voters in 1934 passed an amendment allowing 10-2 and 11-1 jury verdicts in all felony cases. Unanimous verdicts, however, are required in murder cases.

Until a few months ago, Oregon and Louisiana were the only two U.S. states that allowed split verdicts. But that changed in November, when 64 percent of Louisiana voters backed changing the law to require unanimity.

"I do think the decision Louisiana made puts some heat on Oregon to get moving on this," Alice Lundell of the Oregon Innocence Project said. But she added at the same time, statewide conversations on the issue have been happening for a number of years.

That conversation ramped up a year ago, after the Oregon District Attorneys Association signaled support for ending split verdicts. But it was later learned that the group's support hinged on a full repeal of the 1934 measure. A full repeal would allow prosecutors, on behalf of the public, to block defendants from getting trials by judges. Many other states allow bench trials only in cases where the government consents, and prosecutors assert the Oregon law violates a victim's right to have a say in a critical stage of a criminal case.

Oregon voters in 1999 easily rejected a ballot measure that would have given the public, through a prosecutor, the right to demand jury trials.

The ODAA no longer supports a measure that would ask voters for a full repeal, but does back a potential legislative referral that seeks to require unanimous verdicts.

Beth Heckert, who serves both as Jackson County's district attorney as well as the ODAA's current president, said prosecutors believe a ballot proposal contemplating a full repeal likely would violate Oregon's "single-subject" requirement for constitutional referrals.

Heckert acknowledged that ending split verdicts could make it more difficult to gain convictions, but said the majority of the state's elected prosecutors do support moving toward unanimous juries.

"While Oregon has made 10-2 verdicts work, we recognize the need for this law change and believe it is time to align our state with the rest of the country and the federal courts," Heckert said.

Defense attorneys have long argued the law allowing less-than-unanimous verdicts is unconstitutional. Critics of systems that don't require unanimity say it's tough to understand how a guilty verdict that arises from a 10-2 or 11-1 vote shows that guilt has been proven beyond a reasonable doubt — the standard of proof that the government is held to in a criminal trial.

The law change now being considered in Oregon also would apply to acquittals, but the fact is that trials end in guilty verdicts more often than not.

Mary Sofia, a lobbyist for the Oregon Criminal Defense Lawyers Association, said she sees the ODAA's position on the issue as positive. "I think it's something the criminal justice community does appreciate," she said.

The current system makes wrongful convictions more likely, some critics assert. Lundell, the Oregon Innocence Project spokeswoman, mentioned as one example the recent exoneration of Bradley Holbrook. He was convicted in 2002 of sexually abusing a minor after a Yamhill County jury returned a 11-1 verdict in the case, and he spent six years in prison. The conviction was overturned by the Oregon Court of Appeals in December 2017 due to his trial lawyer's ineffective defense.

Others say that argument is bogus. James Hargreaves, a retired Lane County Circuit Court judge, said he has researched the issue of nonunanimous juries in Oregon and found zero evidence to support the claim that split verdicts produce more wrongful convictions than systems that require unanimity.

Hargreaves characterized the push toward unanimous verdicts as part of "a solution looking for a problem." Besides accomplishing uniformity with systems in all 49 other U.S. states, the only thing a law change would produce is an uptick in the number of "hung juries" who cannot reach unanimous verdicts after hearing trial evidence, Hargreaves said.

"The problem with hung juries are they are a trial wasted, with all of the attendant time consumed and costs of prosecutors, defense attorneys" and others who work in the courts, he said. "The good news is that, except (in) mostly high-profile cases, there are often settlements reached before the matter is retried" before a second jury.

Sofia, however, said the change is worth whatever extra costs might be incurred.

"In the United States, one of the most important things in the justice system is access to justice. The other most important thing is fairness," Sofia said. "I would say that neither of those are honored when we put efficiency above a citizens' right to a fair trial."

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